93 Decision Citation: BVA 93-05753
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
Sitting at Denver, Colorado
DOCKET NO. 93-01 915 ) DATE
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THE ISSUE
Entitlement to an increased rating for schizophrenia,
evaluated as 70 percent disabling.
REPRESENTATION
Appellant represented by: Department of Social Services,
Colorado
WITNESSES AT HEARING ON APPEAL
Appellant and [redacted]
ATTORNEY FOR THE BOARD
W. Pope, Counsel
INTRODUCTION
The veteran had active service from April 1969 to November
1970.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from an October 1992 rating decision of the
Denver, Colorado, Regional Office (RO) of the Department of
Veterans Affairs (VA). A notice of disagreement was received
on October 22, 1992. The statement of the case was issued
on November 6, 1992. A substantive appeal was received on
November 17, 1992. A hearing was held at the RO before a
member of the Board in January 1993. The appeal was received
at the Board on January 27, 1993, and docketed on January 29,
1993.
The veteran's appeal also included the issue of whether
there was new and material evidence to reopen the claim of
service connection for post-traumatic stress disorder.
However, during the January 1993 hearing before a member of
the Board the veteran expressed his desire to drop that
issue from his appeal to the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend, in essence, that
his service-connected schizophrenia is productive of greater
impairment than represented by the 70 percent rating cur-
rently assigned. The veteran maintains that he has increased
difficulty with visual and auditory hallucinations, delu-
sional thinking and difficulty making decisions. He asserts
that these problems have resulted in his being unable to
work. Therefore, it is contended that the assignment of a
total rating is warranted.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that a preponderance of the evidence
is in favor of the veteran's claim for an increase.
FINDINGS OF FACT
1. All evidence necessary for a proper disposition of the
veteran's claim is present in the claims folder.
2. The veteran's schizophrenia is manifested by visual and
auditory hallucinations despite medication, impaired thought
processes and being unable to tolerate the stresses which
would normally be expected of someone engaged in a gainful
occupation.
3. The veteran's schizophrenia currently precludes him from
engaging in substantially gainful employment.
CONCLUSION OF LAW
An increased (100 percent) evaluation for the veteran's
service-connected schizophrenia is warranted. 38 U.S.C.A.
§§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 4.10, 4.16(c),
Part 4, Code 9205 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the veteran's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107, and that
the evidence of record is sufficient for an equitable
determination of his appeal.
The veteran is currently receiving compensation based on a
70 percent rating under Diagnostic Code 9205 of the VA Sched-
ule for Rating Disabilities (Schedule). This rating contem-
plates severe impairment of social and industrial adaptabil-
ity. 38 C.F.R. Part 4, Code 9205. In order to receive a
total or 100 percent schedular rating under Diagnostic
Code 9205, there must be a showing of "[a]ctive psychotic
manifestations of such extent, severity, depth, persistence,
or bizarreness as to produce total social and industrial
inadaptability." Id. For the reasons enumerated below, the
Board finds that the veteran does not satisfy the criteria
for the assignment of a total schedular rating as set forth
in Diagnostic Code 9205. However, as will be explained, a
total rating is warranted under the provisions of 38 C.F.R.
§ 4.16(c).
A review of the veteran's claims file discloses that entitle-
ment to service connection was established by a hearing
officer's decision signed in December 1988. While the hear-
ing officer found no evidence of an acquired psychiatric dis-
order existing prior to or during the veteran's service, he
noted that evidence from a VA medical facility based on
treatment from February to July 1971 showed a diagnosis of
acute paranoid schizophrenia that was considerably sympto-
matic less than four months after the veteran's separation
from service. With substantive evidence from additional
sources, the hearing officer found that service connection
was warranted on a presumptive basis under 38 U.S.C.A.
§ 1112 (West 1991).
A rating decision in May 1989 established a temporary
100 percent disability rating effective from January 1986 due
to VA hospitalization for the veteran's service-connected
psychiatric disability, a 50 percent schedular rating effec-
tive from February 1986, following his discharge from
hospitalization, and a 30 percent schedular rating effective
from January 25, 1989, the date of the veteran's most recent
VA psychiatric examination. The veteran was hospitalized at
a VA medical facility in October 1989 for treatment concern-
ing his service-connected psychiatric disability. A hearing
officer's decision, signed in January 1990, established a
50 percent rating for the veteran's schizophrenia effective
from February 1986, the date of the original assignment of
the 50 percent rating. The veteran was again hospitalized
at a VA medical facility for his service-connected schizo-
phrenia in March 1990. A hearing officer's decision signed
in April 1991 established a 70 percent rating for schizo-
phrenia effective from March 7, 1990, the date of the vet-
eran's most recent hospitalization. A 70 percent rating has
remained in effect since that time.
Outpatient treatment records disclose that the veteran has
received counseling and medications for his schizophrenia
since his hospital discharge in March 1990. At a VA psychi-
atric examination in July 1992 the veteran reported that he
spent his day close to home, doing things around the house,
getting the children ready for school, and working in the
yard. He reported that he liked to paint and would spend
most of his free time painting. A mental status examination
disclosed that his affect was quite flat. While there was
no particular evidence of hallucinations during the inter-
view, the examiner felt that delusional material was present.
The diagnosis was residual-type schizophrenia. The examiner
noted that the veteran continued in active treatment and was
delusional at least from time to time with his schizophrenia.
The examiner expressed the opinion that the veteran's schizo-
phrenia was of moderately severe degree of disability.
Test results and a December 1992 report from B. Wilkins,
M.S.W., was presented by the veteran during a hearing at the
RO in January 1993. Ms. Wilkins reported that the veteran
experienced many visual and auditory hallucinations. She
reported that he had difficulty sorting out fact from
fantasy, that he became emotionally frustrated and things
became distorted "with conflict between voices, delusions
and hallucinations." She expressed the opinion that the
veteran was unable to work at any job to support himself and
his family due to his difficulty remaining with reality on a
daily basis. During his hearing the veteran testified that
he had audio and visual hallucinations on a daily basis. He
stated that the hallucinations lasted anywhere from a few
seconds to a half hour. He reported taking 200 milligrams
of Mellaril daily, which partially helped control his hallu-
cinations. He disclosed that he received therapy from a
psychiatrist or psychologist on a weekly basis. He also
reported that he had had approximately 40 to 45 jobs since
the early 1970's, but that he was unable to maintain employ-
ment because any stress during employment increased his
hallucinations proportionately. He indicated that he had
been hospitalized for a short period due to psychiatric
difficulties in December 1992.
While the most recent reports show that the veteran has
significant impairment due to his service-connected psycho-
sis, it is noted that he is apparently able to function
within a family group. While there is no doubt that the
veteran must function in a rather isolated way, he is able
to maintain daily activities, working around the yard and
painting. In short, the Board finds that it is reasonable
to infer from the facts that the veteran's psychotic
manifestations are not of such extent, severity, depth,
persistence, or bizarreness as to produce total social and
industrial incapacity. Consequently, the Board finds that
the criteria set forth in Diagnostic Code 9205 for the
assignment of a total schedular rating have not been met.
Although criteria set forth in Diagnostic Code 9205 have not
specifically been met, the Board nevertheless finds that a
total rating should be assigned under this Code per the
instructions contained in 38 C.F.R. § 4.16(c). The evidence
described above shows that the veteran has not been able to
hold a regular job, particularly because of his inability to
handle the stresses related to employment. A claim for bene-
fits submitted by the veteran in December 1992 disclose that
his last employment positions, as a gas station attendant and
as a car lot attendant in (both in 1978) were individually
terminated when he was hospitalized. The veteran has testi-
fied that his main difficulties with jobs stem from his hal-
lucinations, which increase in intensity and frequency with
the stress of employment. The Board notes that his halluci-
nations, both audio and visual, continue on a daily basis,
despite the utilization of rather heavy doses of narcoleptic
medication. It must be "...remembered that a person may be
too disabled to engage in employment although he or she is
up and about and fairly comfortable at home or upon limited
activity." 38 C.F.R. § 4.10. This seems to be true of the
veteran's symptoms. In other words, despite the good that
therapy and medication have done so far as assisting the
veteran to remain comfortable at home and with limited
activity, he remains unable to engage in any gainful occupa-
tion on a regular basis. Therefore, the assignment of a
total rating under Diagnostic Code 9205 is warranted.
38 C.F.R. § 4.16(c).
ORDER
An increased (100 percent) evaluation for the veteran's
service-connected schizophrenia is granted, subject to the
laws and regulations governing the award of monetary
benefits.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
STEPHEN L. WILKINS U. H. ANG, M.D.
DANIEL J. STEIN
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.